P L D 2003 Lahore 588 (PLP)

ASIF SAEED KHAN KHOSA, J.

The petitioner is an accused person in case F.I.R No.30 registered at Police Station Green Town, Lahore on 16-1-2003 for offences under sections 353/186, P.P.C., section 7 of the Anti-Terrorism Act, 1997 and section 39-A of the Electricity Act, 1910. The said criminal case is presently being tried by the learned Judge, Anti- Terrorism Court-II, Lahore. During the investigation of this case sections 379, 337-A(ii) and 337-L(2), P.P.C were added to the F.I.R. The petitioner and his co-accused submitted an application under section 23 of the Anti-Terrorism Act, 1997 before the learned trial Court seeking transfer of the said criminal case to a Court of ordinary jurisdiction but that application was dismissed by the learned trial Court vide order dated 7-5-2003 and that order has been assailed by the petitioner before this Court through the present writ petition.

2. We have heard the learned counsel for the parties and, have gone through the record of this case with their assistance. It has been argued by the learned counsel for the petitioner that the allegations contained in the F.I.R and the facts of the case emerging during the investigation of this case clearly show that there was no terrorism involved in this case and, therefore, a Court constituted under the Anti-Terrorism Act, 1997 has no jurisdiction to try this case. As against that the learned Assistant Advocate-General appearing for the State as well as the learned counsel for the complainant have maintained that public servants performing their official duty were obstructed in their work and were assaulted upon by the petitioner and his co-accused and, therefore, the case in hand involved terrorism as defined in section 6 of the Anti-Terrorism Act, 1997 and, thus the case in hand is triable exclusively by a Court constituted under the said Act.

3. After hearing the learned counsel for the parties and going through the record we have observed that the main question calling for determination through this petition is as to whether any 'terrorism' as defined in section 6 of the Anti-Terrorism Act, 1997 was involved in this case or not so as to determine jurisdiction of the Court constituted under the said Act trying this case at present. In the cases of Allah Din arid 18 others v. The State and another (1994 SCMR 717), Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) and Azhar Hussain and others v. Government of Punjab and others (1992 PCr.LJ 2308) it has already been held that the question of jurisdiction of a Special Court is to be considered with reference not only to the allegations contained in the F.I.R but also with reference to the facts of the case emerging during the investigation of such a case. It is true that if the F.I.R in this case is to be taken into consideration then apparently some public servants had allegedly been obstructed from performance of their official duty and had also been assaulted upon by the accused party but at the same time it is equally true that most of the allegations contained in the said F.I.R had been found during the investigation of this case to be untrue. For instance, it had beet alleged in the F.I.R that the petitioner and others were indulging in theft of electricity and it has been maintained before us by the learned Assistant Advocate-General and the learned counsel for the complainant that the accused party were illegally running a private Grid Station on their own but during the investigation no evidence whatsoever had become available on the record to support or substantiate such allegations. In the F.I.R it had been maintained by the complainant that he had been given blows with an iron-rod on his head and nose and he had also received a brick-bat injury on his left knee but the Medico-legal Certificate issued in respect of the complainant showed that he had received only one scratch on the bridge of his nose and had not sustained any injury on his head or knee. It had also been maintained in the F.I.R. that one of the accused persons had fired at the complainant with his revolver but the bullet had got stuck in that revolver and, thus the said attempt to fire at the deceased had remained abortive. The Investigating Officer of this case has stated before us today in unequivocal terms that according to the investigation no fire-arm was available or used in the occurrence at all. We have further noticed that according to the F.I.R, apart from the complainant, three other public servants namely Rana Muhammad Irfan, Ahmad Khan and Ijaz Shah had also been beaten up by the accused, patty during the alleged occurrence but the record of investigation shows that Ahmad Khan and Ijaz Shah were never medically examined for any injury and Rana Muhammad Irfan had sustained only a bruise on the right side of his face. No fire-arm was recovered during the investigation of this case and the use of an iron-rod was also not found by the Investigating Officer to have been established. All these factors available on the record have prima facie convinced us that the complainant party had resorted to quite a bit of exaggeration in the F.I.R and an attempt was made therein to bolster and enhance the seriousness of the incident so as to attract the jurisdiction of a Court constituted under the Anti-Terrorism Act, 1997. Such exaggeration might have been resorted to by the complainant party to teach a lesson to the accused party and to get them punished for more than what they might have actually done at the spot. This intention on the part of the complainant party to teach a lesson to the accused party also had a background. It is available on the record that the accused party had complained against the complainant party before the Federal Ombudsman and the matter had ultimately been decided against the complainant party in the recent past.

4. For what has been observed above we have felt satisfied, nay convinced, that a minor and not so, serious incident of an altercation and a push, shove or scuffle taking place at the spot had apparently, with motivation other than bona fide, been given a colour by the complainant party of a graver matter involving 'terrorism'.

5. We have further observed that according to the scheme of the Anti-Terrorism Act, 1997 it is not every disruption of or interference with the duties of a public servant or every coercion intimidation or violence against a public servant which attracts the definition of 'terrorism' contained in section 6 of the Anti-Terrorism Act, 1997 as what the provisions of section 6(2)(1), (m) and (n) of the said Act speak of is 'serious' interference, 'serious' disruption, 'serious' coercion or intimidation or 'serious' violence against a public servant. The word 'serious' has been defined by section 2(w) of the said Act to mean "dangerous to life or property". The facts of this case emerging during the investigation, as referred to by us in the preceding paragraph, show that apparently nothing had been done by the accused party which could be termed as dangerous to life or property and, thus, application of the provisions of section 6(2) (1), (m) and (n) to the case in hand has appeared to us to be quite suspect.

6. Apart from what has been observed above the punishments provided under section 7 of the Anti-Terrorism Act, 1997 for the offences alleged in this case are surely much higher, strict and stringent as compared to the punishments provided for the same offences in the ordinary law. Therefore we are conscious of the fact that while interpreting the provisions of the Anti-Terrorism Act, 1997 we have to construe the same strictly and the benefit, if any, arising in this regard has to be extended to the accused party. A reference in this regard may be made to the case of Haris Abdullah v. The State (1999 YLR 643). In this backdrop we have arrived at confident conclusion that the alleged interference with or disruption of the duty of the public servants involved in this case or coercion or intimidation of or violence against such public servants was not 'serious' enough to attract the definition of 'terrorism' contained in section 6 of the Anti-Terrorism Act. 1997 and, thus, a Court constituted under the said Act has no jurisdiction to try the case in hand.

7. As a sequel to the discussion made above this writ petition is accepted, the impugned order dated 7-5-2003 passed by the learned Judge, Anti-Terrorism Court-II, Lahore is set aside, the application of the petitioner submitted under section 23 of the Anti-Terrorism Act, 1997 is accepted and the above mentioned criminal case is hereby ordered to be tried by an ordinary Court under the normal laws. The learned Judge, Anti-Terrorism Court-II, Lahore shall transmit the record of this case to the learned District & Sessions Judge, Lahore forthwith and the latter shall entrust the trial of this case to any Court of competent jurisdiction. There shall be no order as to costs. M.B.A./T-126/L Petition accepted.